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2025 DIGILAW 2570 (KER)

Sreekumar v. Ajithkumar

2025-09-25

SHOBA ANNAMMA EAPEN

body2025
JUDGMENT : SHOBA ANNAMMA EAPEN, J. This appeal is filed by the claimant in O.P (MV) No.247 of 2003 on the file of the Additional Motor Accidents Claims Tribunal, Mavelikkara. The respondents herein are the respondents before the tribunal. 2. According to the appellant/claimant, on 07.09.2001 at about 07.50 am, while the claimant was pillion riding on a motorcycle bearing reg. no. KL-4B/2492, a car bearing registration No.KRT-212 driven by the 1 st respondent in a rash and negligent manner hit against the motorcycle. As a result, the claimant had sustained serious injuries. The claimant approached the tribunal claiming a total compensation of ?14,09,000/- limited to ?12,00,000/-. 3. The first, second and third respondents were the driver, owner and insurer of the offending vehicle respectively. The third respondent, insurer of the offending vehicle filed a written statement admitting the insurance policy, but disputing the quantum of compensation claimed. Before the tribunal, Exts.A1 to A17 and Ext.X1 were marked. The tribunal, after analysing the pleadings and materials on record, awarded a sum of ?6,27,700/- as compensation under different heads where ?6,17,700/- is to be realised with interest @7.5% per annum from the date of petition till realization with proportionate costs and the remaining ?10,000/- to be paid without interest if deposited within 75 days against the third respondent being the insurer of the offending vehicle. If the said amount is not paid within 75 days, the award amount of ?6,17,700/- will carry interest @12% from the date of award to the date of deposit. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimant has come up in appeal. 4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurance company. 5. The learned counsel for the appellant claims enhancement mainly under the following heads :- Notional income :- The learned counsel for the appellant submitted that though the appellant was the owner of the stage carriage and was a gulf returnee, the Tribunal had taken only a sum of ?3,000/- as his monthly income. The learned counsel for the appellant further submitted that, as per the judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [ 2011 (13) SCC 236 ] , the notional income of a coolie is fixed at ?3,000/- per month for an accident that occurred in the year 2001 and sought for enhancement of income fixed. The learned counsel for the appellant further submitted that, as per the judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [ 2011 (13) SCC 236 ] , the notional income of a coolie is fixed at ?3,000/- per month for an accident that occurred in the year 2001 and sought for enhancement of income fixed. On a perusal of the award and the records available, the appellant has not produced any documents to prove the income at the time of accident. Considering that the appellant was the owner of the stage carriage as well as a Gulf returnee, in order to award just compensation, I find it appropriate, to refix his monthly income at ?5,500/-. Loss of earnings :- The learned counsel for the appellant submitted that the tribunal has taken only a period of twelve months for awarding compensation under the said head. The learned counsel further submitted that the appellant was completely bedridden for a period of 2 years. On the other hand, the learned standing counsel for the insurance company submitted that there are no supporting documents to establish that the appellant was bedridden for two years, and that the Tribunal had reasonably taken the period of twelve months for awarding compensation. Following were the injuries sustained :- “As per Ext.A4 wound certificate the petitioner had sustained contusion right hip, ankle and shoulder. As per Ext.A6 discharge card series reveals that the petitioner had sustained fracture acetabulum, central end of clavicle right etc were treated by external fixation and K- wiring.” Considering the nature of injuries sustained, I find that a period of fifteen months can be taken for awarding compensation under the afore head. Since the monthly income is refixed at ?5,500/-, the total compensation payable under the afore head is recalculated thus: ?82,500/- (5,500x15). The tribunal has already awarded an amount of ?36,000/- under the said head. Thus, there will be an additional amount of ? 46,500/- under the head loss of earnings. Bystander expenses :- The tribunal has granted an amount of ?5,300/- taking ?100/-per day, for 53 days. The accident occurred in the year 2001. The amount @?100/- per day, taken by the tribunal, appears to be just and reasonable. I do not find any reason to interfere with the award. 46,500/- under the head loss of earnings. Bystander expenses :- The tribunal has granted an amount of ?5,300/- taking ?100/-per day, for 53 days. The accident occurred in the year 2001. The amount @?100/- per day, taken by the tribunal, appears to be just and reasonable. I do not find any reason to interfere with the award. Pain and sufferings :- The learned counsel for the appellant submitted that though an amount of ?1,00,000/- was claimed, the tribunal has awarded only an amount of ?50,000/- under the head pain and sufferings. It is further submitted that the petitioner had undergone hip replacement pursuant to the accident. Ext.A11 certificate, reveals that he had infection of the right hip joint on 17.05.2003. The discharge summary also reveals that he had a fracture of the acetabulum. He had undergone treatment for the infection of right hip joint in 2003 and he also underwent total hip replacement on 15.06.2003. On a perusal of the award, it is seen that the entire medical expenses was awarded by the tribunal. Considering the nature of injuries sustained as well as the age of the appellant, I find that a total amount of ?70,000/- can be awarded under the said head. Thus, there will be an additional amount of ? 20,000/ - under the afore head. Loss of amenities :- The learned counsel for the appellant submitted that though an amount of ?2,00,000/- was claimed, the tribunal has awarded only an amount of ?20,000/- under the head loss of amenities. Considering the nature of injuries sustained and the loss of enjoyment in life of the appellant, I find that a total amount of ?40,000/- can be awarded under the said head. Thus, there will be an additional amount of ? 20,000/ - under the afore head. Permanent Disability :- Since the monthly income is re-fixed as ?5,500 and the appellant being aged between 41-45 at the time of the accident, following the judgments in National Insurance Co. Ltd. v. Pranay Sethi [ 2017(4) KLT 662 (SC)] and Sarla Verma v. Delhi Transport Corporation [ 2010(2) KLT 802 (SC)] , the compensation for the afore head is calculated as thus: ?2,31,000/- ( 5,500x12x14x25/100). The tribunal has awarded an amount of ?1,26,000/- under the said head. Therefore, the appellant is entitled for an additional amount of ? 1,05,000/- under the afore head. The tribunal has awarded an amount of ?1,26,000/- under the said head. Therefore, the appellant is entitled for an additional amount of ? 1,05,000/- under the afore head. Future Medical expenses :- The learned counsel for the appellant submitted that the petitioner had undergone hip replacement surgery in the year 2003. He needs to undergo hip replacement surgery every ten years. He also relied on the certificate dated 06.06.2025 filed along with I.A. No.2 of 2025, which certifies that he has been diagnosed with aseptic loosening of the right hip and has been advised to undergo implant removal and revision of the total hip replacement on the right side, involving a huge expenditure. According to the learned counsel for the appellant, the injuries to the hip was a consequence of the road accident that occurred in the year 2001. On the other hand, learned standing counsel appearing for the insurance company submitted that the injury to the hip and the replacement done in the year 2003 is due to osteoarthritis and not as the consequence of the accident which occurred in 2001. On a perusal of Ext.A4 wound certificate and Ext.A5 discharge certificate, it is seen that he had sustained a fracture of the acetabulum in the accident on 07.09.2001. However, the appellant has not adduced any evidence to establish that he had suffered severe hip injuries or that the hip replacement surgery undergone in 2003 was a direct consequence of the said accident which occurred in the year 2001. The learned counsel for the appellant submitted that the tribunal has granted only an amount of ?10,000/- towards future medical expenses, which is on the lower side. Therefore, the learned counsel for the appellant seeks one more opportunity to substantiate his contentions before the tribunal. It is true that the appellant has not claimed any amount towards future medical expenses. However, the tribunal has awarded an amount of ?10,000/-. The amount now claimed by the appellant relying on the certificate dated 06.06.2025 issued from Lakeshore Hospital, Nettoor, Kochi along with I.A.No.1/2025, is a big amount and that can be allowed only by adducing proper evidence. On the basis of the documents now produced before this Court along with I.A.Nos.1/2023, 1/2024 and 2/2025, I find it appropriate to remand the matter back to the tribunal for deciding the claim towards future medical expenses, now put forward in this appeal. 6. On the basis of the documents now produced before this Court along with I.A.Nos.1/2023, 1/2024 and 2/2025, I find it appropriate to remand the matter back to the tribunal for deciding the claim towards future medical expenses, now put forward in this appeal. 6. Though the appellant claimed enhancement of compensation under the other heads, on a perusal of the records available, I am not inclined to interfere with the compensation awarded by the tribunal under other heads since it appears to be just and reasonable. Since the appeal is of the year 2013, I find it appropriate to fix the interest @7% per annum on the enhanced amount. 7. On a perusal of the award, it is seen that the Tribunal awarded penal interest at the rate of 12%, which is not legally sustainable in view of the judgment of the Apex Court in National Insurance Co. Ltd. v. Keshav Bahadur [ 2004 (2) SCC 370 ] . Accordingly, the direction of the Tribunal awarding penal interest @ 12% is set aside. 8. Thus, the impugned award of the tribunal is modified as follows:- Sl. No Head of Claim Amount claimed Amount awarded by the tribunal Modified in appeal Total compensation 1 Loss of earnings 2,08,000 36,000 46,500 82,500 2 Medical and miscellaneous expenses 3,00,000 3,63,400 (not modified) 3,63,400 3 Bystander expenses Nil 5,300 (not modified) 5,300 4 Transportation expenses 50,000 2,000 (not modified) 2,000 5 Extra nourishment 50,000 10,000 (not modified) 10,000 6 Pain and sufferings 1,00,000 50,000 20,000 70,000 7 Disability 5,00,000 1,26,000 1,05,000 2,31,000 8 Loss of amenities 2,00,000 20,000 20,000 40,000 9 Future medical expenses Nil 10,000 (not modified) 10,000 10 Any other heads (review treatment) 5,000 (not modified) 5,000 TOTAL 14,09,000 limited to 12,00,000 6,27,700 1,91,500 8,19,200 Accordingly, the appeal is allowed in part as follows: 1.The appellant/claimant is awarded an additional compensation of ? 1,91,500/- (Rupees one lakh ninety one thousand five hundred only) over and above the compensation awarded by the tribunal with interest @7% per annum from the date of petition till realization and proportionate costs. 2.The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. 2.The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, ADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law. However, it is made clear that the enhanced compensation will not carry interest for the period of delay of 245 days in filing the appeal. 3. The issue regarding the claim for future medical expenses alone is remanded back to the Tribunal for a fresh consideration. 4.The parties will be at liberty to adduce evidence on the basis of the documents produced in connection with the hip replacement and the certificate dated 06.06.2025 now issued by the VPS Lakeshore Hospital, Nettoor, Kochi. The remand is limited only to the issue regarding future medical expenses. The parties shall appear before the tribunal on 27.10.2025. 5.The parties shall appear before the tribunal on 27.10.2025. The Tribunal shall consider the matter and dispose of the matter as expeditious as possible. 6.The registry shall return the Trial Court Records and also all the original documents filed by the appellant before this Court along with I.A.Nos.1/2023, 1/2024 and 2/2025.